FILED

NOT FOR PUBLICATION APR 29 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOHN MACMULLIN, No. 09-15652

Appellant, D.C. No. 2:08-cv-00768-FJM

v.

MEMORANDUM *

WILLIAM G. POACH, Jr.; LYNN M.

ANDERSON; DONALD CHILDERS;

PETER M. WILLIAMS; MARION

HUBBARD; PATRICIA A. OROZCO

Judge; DIANE M. JOHNSEN; G. MURRAY SNOW, Judge; LINDSAY ELLIS, Commissioner; MICHAEL D. HINTZE, Commissioner,

Appellees,

and

RUSSELL BROWN,

Trustee.

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted April 13, 2010 ** San Francisco, California

Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.

John MacMullin appeals from the district court’s affirmance of the

bankruptcy court’s order modifying the automatic stay to permit the probate of

Sylvia Levering’s Estate to continue and referring all questions relating to the

merits of attorney’s fees and costs awarded during probate proceedings to the

probate court.

After reviewing the record and the briefs, we affirm for the reasons given by

the district court in its decision. As explained in Marshall v. Marshall, 547 U.S.

293 (2006), the probate exception to bankruptcy jurisdiction applies to claims

against the res in the custody of the state court and to matters internal to the

probate of the will.

We construe MacMullin’s “motion re: record” as a request for judicial notice

of records that were not before the bankruptcy court and deny.

AFFIRMED; MOTION DENIED.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).